The Applicants applied to set aside a Notice of Appointment for Questioning of Ms. Pelton (the “Advocate”) and to dispense with the Respondents’ Application to compel the Advocate to attend Questioning and mandating the Office of the Child and Youth Advocate (the “OCYA”) to produce certain records. The Respondents sought to compel the attendance of the Advocate and the production of records identified on the Application.

The competing Applications arose in the context of ongoing discovery in class proceedings. The Applicant took the position that neither the production of records held by the OCYA, nor Questioning the Advocate, was permitted under the Child and Youth Advocate Act, SA 2011, c C-11.5 (the “Act”), as the records were created before the Act. At the time the records were created, the relevant legislation was the Child, Youth, and Family Enhancement Act, RSA 2000, c C-12 (the “CYFEA”). Graesser J. concluded that the CYFEA did not prohibit anyone for being called on to testify in any type of proceedings, and that the Act did not provide retroactive protection against lawsuits commenced before the Act came into effect. Thus, Graesser J. turned his analysis to the Rules.

The Advocate and the OCYA opposed production of the records on a number of grounds, claiming, among other things, that Rule 5.17 did not apply and the OCYA was not adverse in interest to the Plaintiffs, and the requirements of Rule 5.13 had not been met. The Plaintiffs, on the other hand, argued, among other things, that the records were relevant, and the requirements of the Rules were met.

The Applicant advanced the argument that that there was not another party “adverse in interest” to the Respondents. Graesser J. concluded that, subject to Rule 5.13, no valid objection to the Advocates proposed Questioning could be made on the basis that the Advocate and the OYCA are not “adverse in interest” to the Plaintiff. He concluded this on the basis that until April 1, 2012 (the date in which the Act came into effect) the Advocate reported to the Minister of Children and Family Services and the OCYA was part of the Ministry of Children and Family Services, and thus were compellable to testify in any proceeding, just like any other government officer or employee, pursuant to s. 11 of the Proceedings Against the Crown Act, RSA 2000, c P-25. Further, in the event that the OYCA was somehow considered independent from the Crown, attendance for Questioning would likely be secured by using the “near employee” provisions of Rule 5.18, as if someone is not included in Rule 5.17, Rule 5.18 provides for the Questioning of “near” employees or officers.

The Plaintiffs sought records categorized by Graesser J. as the “Initial Advice Documents” and the “Subsequent Documents”. As for the Initial Advice Documents, the Applicants cited Dreco Energy Services Ltd v Wenzel, 2009 ABQB 574, where Greckol J. (as she then was) held that Rule 5.13 required that the requested documents be defined with specificity. Graesser J. distinguished the case from the matter at hand since the Plaintiffs were seeking documents that the Defendant gave to the Applicants, and because the Applicants were not true third parties since they were part of the “Crown”. Graesser J. was satisfied that the Initial Advice Documents existed and did not see how the Plaintiffs could have provided any better description of what they were looking for. Graesser J. did not feel the need to address the issue of relevance and materiality of the Initial Advice Documents, as they appeared to go to the heart of a live issue and Questioning on them automatically flowed from that. Thus, he concluded that the proposed Questioning was not contrary to Rule 5.17.

Graesser J. concluded that ongoing communications, if there are any, between the Applicants and the Government as to the issue of suing for Government wrongs allegedly done to children in care would be relevant for the same reasons as above. Records dealing with possible claims against the Government and how those situations were handled by the Applicants would also be relevant, assuming any such claims were referred to the Applicants and any records exist. Though the Applicants argued that the Plaintiff could not embark on a fishing expedition, Graesser J. concluded this was not the case as it was a logical assumption to believe ongoing communications would exist, and because the Applicants themselves will know if the communications exist. 

The Applicants further argued that the Advocate did not personally have records, and therefore no records could not be compelled under Rule 5.13. Graesser J. stated that though the Advocate may not have personal control over the records, as an employee she had access to such records. Thus, he concluded that to the extent that the Applicants have possession of or control over the any of the records sought in the Plaintiffs’ Application (but for privileged documents), they were clearly producible under Rule 5.13.

Thus, the Application by the Advocate and the CYAO was dismissed. As it pertained to Costs, the Applicants suggested that the Plaintiffs’ counsel was improper and sought to cancel the appointment for Questioning as being unnecessary, improper, or vexatious under Rule 5.19. The Applicant alleged that the Plaintiffs’ counsel had repeatedly contacted employees of the OCYA attempting to obtain information that was not within the public domain, calling the behavior improper, harassing and an annoyance to the OCYA. Graesser J. found, to the contrary, that the Applicant’s personal attacks warranted enhanced Costs therefore set Costs at double the appropriate column for a contested Application with Briefs.